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AT THE OFFICE: Law permits boss to ask about worker's illness

Q: I am a school district food-service worker, and we received a notice from our supervisor that I think represents an invasion of privacy. Here is what it says:...

Q: I am a school district food-service worker, and we received a notice from our supervisor that I think represents an invasion of privacy. Here is what it says:

"When staff members call in sick, they must indicate what the illness is. Likewise, if a worker has to miss work because a family member is sick, the employee must be willing to tell us what the illness is. The Board of Health has asked employers to collect such information."

I understand that everyone wants to be careful because of the swine flu outbreak. But this seems to cross the line.

A: The requests are probably legal.

"The disability-discrimination laws permit an employer to ask employees about their medical condition as long as the inquiries are justified by a business-related reason," said employment lawyer Richard Kass, a partner at Bond, Schoeneck & King in Manhattan.

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So what makes your company's requests legal?

"If the Board of Health requires the school district to gather the information, that is a valid reason for gathering it," Kass said.

Your company on its own could legally ask for the medical information, but again it has to be business-related.

"Even if the Board of Health does not require it, but the school district just wants to make sure its food is safe, that would be a valid reason, too," Kass said.

The company has to ensure the medical details stay confidential, Kass said. And it should be kept separate from an employee's regular personnel file.

He added, "The information should not be shared with other employees or with outsiders except on a need-to-know basis."

Q: I work for a private special-education school that receives funding from the Department of Education. We follow the department's modified calendar, which gives us a one- to two-week paid break over the summer just before school resumes.

Because the school is renovating, our supervisor wants us to cut our vacation short by two days so we can help put the classrooms back together. The supervisor said we won't be paid because this is a sacrifice we need to make for the school. Is this legal?

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A: While being asked to report back early generally isn't illegal, not being paid for the time could be a labor law violation, said Irv Miljoner, who heads the Long Island Office of the U.S. Department of Labor in Westbury.

If you're a nonexempt worker, which most often means hourly, you have to be paid for all the time you work. And you would have to be paid overtime when you work more than 40 hours in a week. Nonexempt employees fall outside the professional, executive, administrative and outside-sales categories. Workers in those categories, such as teachers and managers, don't have to be paid for extra work.

During this recession, some companies have violated labor law by not paying nonexempt employees for extra hours worked.

"We've always encountered it occasionally," Miljoner said. "But we are encountering it more in this economy."

The district could also be in violation of state laws regarding paid vacation. Labor law doesn't require paid time off, but when companies promise it, they have to deliver.

(Carrie Mason-Draffen is the author of "151 Quick Ideas to Deal With Difficult People." She welcomes questions for the "Help Wanted" column. Contact her at 631-843-2450 or carrie.draffen@newsday.com .)

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